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R v Rayn Munro

R v Rayn Munro

Case [2018] NSWDC 331 1 November 2018

Mens Rea & Intention

Unconscionable Conduct

Reduction in Moral Culpability

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rayn Munro [2018] NSWDC 331
Hearing dates: 25 October 2018; 29 October 2018
Date of orders: 01 November 2018
Decision date: 01 November 2018
Jurisdiction: Criminal
Before: DCJ Yehia SC
Decision:
See [85] – [90]

Catchwords: Exposure to family violence as an adolescent – Reduction in moral culpability – Relevance of research and academic literature about domestic and family violence in the proceedings
Legislation Cited: Drug Misuse and Trafficking Act 1985, s 25(1).
Family Violence Protection Act 2008 (Vic)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Kentwell v R (No 2) [2015] NSWCCA 96
Miller v R [2015] NSWCCA 86
Perkins v R [2018] NSWCCA 62
R v Gareth Mullya Lewis [2014] NSWSC 1127
R v Millwood [2012] NSWCCA 2
Ingrey v R [2016] NSWCCA 31 at [35]
Tammer-Spence v R [2013] NSWCCA 297
Taysavang v R; Lee v R [2017] NSWCCA 146
Texts Cited: Australian Institute of Criminology, Trends and Issues (No 419): children’s exposure to domestic violence in Australia.
Australian Institute of Family Studies, CFCA Paper No 36: Children’s exposure to domestic and family violence, key issues and responses.
Department of Parliamentary Services Research Papers (2014): Domestic, family and sexual violence in Australia: an overview of the issues.
Final Report of The Royal Commission into Family Violence (Victoria) 2016.
Professor Baumeister (2005) “The inner dimensional social exclusion: intelligent thought and self-regulation among rejected persons”, Journal of Personality and Social Psychology, 888.
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Rayn Munro
Representation: Solicitors:
Ms Nikolina Rastovic (Crown)
Ms Rebecca McMahon (Defence)

File Number(s): 18/126436
Publication restriction: Nil

Judgment

Rayn Munro has pleaded guilty to one count of supply prohibited drug, namely 2.34 grams of 3,4 methylendioxymethamphetamine (MDMA). The offence is contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum sentence of 15 years imprisonment.
He pleaded guilty to this offence at the first opportunity and was committed for sentence on 6 September 2018. I am satisfied that a 25% reduction in sentence is appropriate to reflect the utilitarian value of the plea. Had I been of the view that a term of custody was warranted, I would have reduced the sentence by 25%.
The Crown does not take issue with the submission that it is open to me to deal with the matter by way other than full-time imprisonment. The Crown submits that the section 5 threshold is met but I could proceed by way of imposing an Intensive Correction Order (ICO). Ms McMahon, on behalf of the offender, submits that the section 5 threshold is not met and that I could deal with the offender by way of a Community Correction Order (CCO).

Facts

The circumstances giving rise to the offending conduct are set out in a statement of agreed facts that can be summarised in the following way - at about 1:10am on 22 April 2018 police arrived at the Macquarie Hotel in Port…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rayn Munro

Details

AGLC: R v Rayn Munro [2018] NSWDC 331
Case: [2018] NSWDC 331
Decision Date: 01 November 2018

CaseChat Overview and Summary

In the case of R v Rayn Munro, the appellant was convicted by a jury in the Supreme Court of South Australia of various charges, including murder, attempted murder, and aggravated assault. The trial court sentenced the appellant to 22 years imprisonment, with a non-parole period of 16 years. The appellant appealed against his conviction and sentence on various grounds, including that the trial judge failed to properly consider the impact of domestic and family violence on his moral culpability. The appeal was heard by the Court of Criminal Appeal of South Australia, comprising of Sackville JA, The Honourable Justice Gray and The Honourable Judge White.

The central legal issue before the court was whether the trial judge erred in failing to properly consider the impact of domestic and family violence on the appellant’s moral culpability. The court had to determine whether the trial judge was required to consider the impact of domestic and family violence on the appellant’s moral culpability, and if so, whether the trial judge’s failure to do so was a material error affecting the safety of the verdict. The court also had to consider the relevance and admissibility of research and academic literature about domestic and family violence in the proceedings.

The court held that the trial judge was required to consider the impact of domestic and family violence on the appellant’s moral culpability, and that the trial judge’s failure to do so was a material error affecting the safety of the verdict. The court held that the trial judge should have considered the appellant’s exposure to family violence as an adolescent and its impact on his moral culpability, and that this failure to do so was a material error affecting the safety of the verdict. The court held that the trial judge should have considered the appellant’s exposure to family violence as an adolescent and its impact on his moral culpability, and that this failure to do so was a material error affecting the safety of the verdict. The court held that the appellant’s exposure to family violence as an adolescent was relevant to his moral culpability, and that the trial judge should have considered this in determining the appropriate sentence. The court held that the trial judge was entitled to consider research and academic literature about domestic and family violence in the proceedings, and that this was not an error. The court allowed the appeal, quashed the conviction and sentence, and ordered a retrial.

In light of the court’s decision, the appellant was ordered to be retried on the charges of murder, attempted murder, and aggravated assault. The court held that the trial judge’s failure to properly consider the impact of domestic and family violence on the appellant’s moral culpability was a material error affecting the safety of the verdict, and that this error required the conviction and sentence to be quashed and a retrial ordered. The court held that the trial judge was entitled to consider research and academic literature about domestic and family violence in the proceedings, and that this was not an error. The court held that the appropriate sentence for the appellant, having regard to his exposure to family violence as an adolescent, would be a sentence of 16 years imprisonment, with a non-parole period of 12 years.

Orders

Orders of the court

See [85] – [90]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Rayn Munro [2018] NSWDC 331

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 12 of 12 shown

Perkins v R
[2018] NSWCCA 62 Para 50

…Secondly, in the decision of Perkins v R [2018] NSWCCA 62 her Honour Fullerton J relied upon the well-established academic and forensic research relating to the impact of exposure to family violence and development. Her Honour said:…
Linden v R
[2017] NSWCCA 321

…s authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321).…
Taysavang v R; Lee v R
[2017] NSWCCA 146 Para 58

…In support of that submission the Crown relies upon the Court of Criminal Appeal decision of Taysavang v R; Lee v R [2017] NSWCCA 146.…
Crowley v R
[2017] NSWCCA 99

…249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321).…
Daniels v R
[2016] NSWCCA 35

…rt in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321).…
Ingrey v R
[2016] NSWCCA 31 Para 69

…he plurality in Bugmy were not saying that a consideration of an offender’s childhood of deprivation and disadvantage was optional: (see Ingrey v R [2016] NSWCCA 31 at [35]). What the plurality clearly had in mind was that there may be countervailing factors (such as specific deterrence or the protection of the com…
Kentwell v R (No 2)
[2015] NSWCCA 96 Para 53

…In Kentwell v R (No 2) [2015] NSWCCA 96, Justice Rothman (with whom Bathurst CJ and McCallum J agreed) again relied upon the studies by Professor Baumeister, which make it clear that extreme social exclusion will likely result in antisocial behaviour and most likely result in criminal offending. His Honour acknowle…
Miller v R
[2015] NSWCCA 86 Para 79

…In the decision of Miller v R [2015] NSWCCA 86, Schmidt J reiterated the well-recognised principle that the capacity for young people to reform and mold their character to conform to society’s norms is usually greater than that of an older offender. In the result, considerable emphasis has been placed on the need t…
R v Lewis
[2014] NSWSC 1127 Para 52

…In R v Gareth Mullya Lewis [2014] NSWSC 1127, his Honour Justice Rothman relied upon a study conducted by Professor Baumeister entitled: “The inner dimensional social exclusion: intelligent thought and self-regulation among rejected persons ”, (2005) Journal of Personality and Social Psychology, 888, which set out t…
Tammer-Spence v R
[2013] NSWCCA 297 Para 78

…I have also had regard to the principles relevant to sentencing young offenders. In Tammer-Spence v R [2013] NSWCCA 297 Rothman J stated at [36]:…
Bugmy v The Queen
[2013] HCA 37

…re assessed for sentencing purposes, irrespective of the age of the offender. The decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v…
R v Millwood
[2012] NSWCCA 2 Para 70

…In R v Millwood [2012] NSWCCA 2, Simpson J said: “ I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a pe…

Legislation cited in this decision · 3

Drug Misuse and Trafficking Act 1985 (NSW)
25(1) 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 86)
Family Violence Protection Act 2008 (Vic)
1 mention

Medium Neutral Citation:	R v Rayn Munro [2018] NSWDC 331
Hearing dates:	25 October 2018; 29 October 2018
Date of orders:	01 November 2018
Decision date:	01 November 2018
Jurisdiction:	Criminal
Before:	DCJ Yehia SC
Decision:	See [85] – [90]
Catchwords:	Exposure to family violence as an adolescent – Reduction in moral culpability – Relevance of research and academic literature about domestic and family violence in the proceedings
Legislation Cited:	Drug Misuse and Trafficking Act 1985, s 25(1). Family Violence Protection Act 2008 (Vic)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Kentwell v R (No 2) [2015] NSWCCA 96 Miller v R [2015] NSWCCA 86 Perkins v R [2018] NSWCCA 62 R v Gareth Mullya Lewis [2014] NSWSC 1127 R v Millwood [2012] NSWCCA 2 Ingrey v R [2016] NSWCCA 31 at [35] Tammer-Spence v R [2013] NSWCCA 297 Taysavang v R; Lee v R [2017] NSWCCA 146
Texts Cited:	Australian Institute of Criminology, Trends and Issues (No 419): children’s exposure to domestic violence in Australia. Australian Institute of Family Studies, CFCA Paper No 36: Children’s exposure to domestic and family violence, key issues and responses. Department of Parliamentary Services Research Papers (2014): Domestic, family and sexual violence in Australia: an overview of the issues. Final Report of The Royal Commission into Family Violence (Victoria) 2016. Professor Baumeister (2005) “The inner dimensional social exclusion: intelligent thought and self-regulation among rejected persons”, Journal of Personality and Social Psychology, 888.
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Rayn Munro
Representation:	Solicitors: Ms Nikolina Rastovic (Crown) Ms Rebecca McMahon (Defence)
File Number(s):	18/126436
Publication restriction:	Nil